Category Archives: Free Speech

Civility and Free Speech

At 5:00 pm today, I will participate in a panel discussion at the McKinney School of Law (my alma mater), focused on whether the Free Speech protections of the First Amendment tend to promote incivility.

Back in the day, when I was Executive Director of Indiana’s ACLU, I mounted a campaign through the organization’s newsletter to promote civility. That campaign caused consternation for some members, who worried that an emphasis on civil discourse somehow undermined, or was evidence of less than robust support for, Free Speech.

They missed what I believe to be the central point.

Philosophers from John Stuart Mill to Alexander Mieklejohn have argued for protection of speech and the free exchange of ideas; they have seen the “marketplace of ideas” as the absolutely necessary foundation of the search for truth.  (As Mieklejohn famously said, People who are afraid of an idea—any idea—are unfit for self-government.)

The nation’s Founders understood that all ideas, no matter how noxious, should be available for discussion. They certainly didn’t protect speech because they underestimated the danger ideas could pose; they knew how powerful –and damaging–ideas could be. They protected free expression because they understood that giving government the authority to decide which ideas are acceptable—what sort of speech should be permitted– was far more dangerous.

But that is where civility comes in. If free speech is to achieve its purposes—if it is to encourage us to consider and vet all ideas, consider all perspectives—we need to listen to each other. Insults, labeling, dismissing, racial “dog whistles”—all those hallmarks of incivility—distract from and derail the kinds of genuine conversation that the First Amendment is intended to foster.

Screaming invective across political or religious divides undermines the purpose of the First Amendment’s Free Speech provisions. Is such speech protected? Absolutely. Is it useful? Not usually.

Who’s Talking?

As long as we’re on the subject of First Amendment Free Speech rights, a federal judge has just handed down a decision that illuminates another aspect of those rights.

As I explained yesterday, our right to free expression is protected against government interference. Usually we think of that interference in terms of censorship, of government shutting us down. But this judge’s decision–which rests on decades of settled law–reminds us of another thing government cannot constitutionally do: it cannot compel our speech, either.

(Reuters) – A federal judge on Friday struck down a 2011 North Carolina law requiring abortion providers to perform an ultrasound and explain it to a woman before having an abortion, arguing it violated the constitutional right to free speech of doctors.

U.S. District Judge Catherine Eagles found that a state does not have “the power to compel a health care provider to speak, in his or her own voice, the state’s ideological message in favor of carrying a pregnancy to term.”

If the right to free speech means anything, it means that we have a right to form our own opinions, based on the widest possible access to information, and to share those opinions with others, or not, as we see fit.

Being forced to recite a script and pretend it represents our own views, like being forced to affirm allegiance to a deity or a nation (see Barnett v. West Virginia Board of Education), isn’t just intellectually dishonest; it violates our most fundamental liberties.

Compelled speech is especially pernicious when it intrudes upon the doctor/patient relationship, which depends to a great extent upon the patient’s ability to rely upon the candor of her provider–to trust that her doctor is acting in her best interests.

The principle extends well beyond medical advice, however. If the government could tell professionals of any sort what to say, if lawmakers could impose “correct” communication on scientists, police officers, media figures… how would Americans ever be able to trust anyone?

How would we know who is really talking?

Kansas Again

I need to reread “What’s the Matter with Kansas.”

University regents in that state have passed a policy giving university presidents authority to discipline employees, up to termination, for “improper use of social media.”

The action–characterized by an AAUP blogger as “a freakout”–came in the wake of an ill-considered tweet by a tenured Journalism professor. David Guth posted the tweet after September shootings killed 13 people in Washington, D.C. It said, “The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”

In a later tweet, he apologized by saying “Some interpreted my tweet differently than it was intended,” Guth wrote. “I don’t want anyone’s children hurt. The fact my words were misconstrued is my fault.” Guth said that he was a professional communicator but hadn’t done a good job of explaining his position.

Conservative legislators threatened to vote against university funding if Guth remained on the faculty. Rather than defending the principle of academic freedom, the President responded by relieving Guth of his classroom duties, and the regents responded by issuing the new social media policy.

 “Social media” was defined as including but not being limited to blogs and social networking sites such as Facebook, LinkedIn, Twitter, Flickr and YouTube. “Improper use” was defined as “indirectly inciting violence or immediate breach of peace; being contrary to the best interests of the university; disclosing without authority any confidential student information, protected health care information, personnel records, personal financial information or confidential research data; or impairing discipline by superiors or harmony among co-workers, having a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impeding the performance of the speaker’s official duties, interfering with the regular operation of the university, or otherwise adversely affecting the university’s ability to efficiently provide services.”

“Contrary to the best interests of the University”? “Impairing harmony?” In whose opinion? Can we spell “vague and overbroad”?

A group of University Distinguished Professors from Kansas State has called for the immediate repeal of the amendment, pointing out that social media have become valued venues for the dissemination of research, and reminding the regents that  “The free and open exchange of ideas is essential to fulfilling the mission of any university.”

Let’s de-construct this sorry episode, shall we?

The whole purpose of a university is to encourage the search for truth. That search requires the broadest possible exploration and exchange of competing ideas–a mission that cannot be achieved if professors can be sanctioned for the expression of unpopular or offensive ideas. The purpose of tenure is not–as too many in and out of the academy seem to think– to provide faculty with job security; it was intended to prevent precisely the sort of retribution for unpopular expression that the Kansas legislature demanded and the University obediently imposed.

Intemperate and ill-conceived expression is the price we pay for protecting freedom of speech and scholarly inquiry from government interference.

We’ve become used to legislative bodies demonstrating a lack of acquaintance with basic American principles, but we might have expected better of the regents.

Of course, it is Kansas…

Zinn 1, Daniels 0

Yesterday, university  campuses around the state held Howard Zinn “Read Ins”  at which numerous faculty–including yours truly– participated. The events were prompted by then-Governor Daniels’ efforts to banish Zinn’s work from Indiana classrooms.

As I said yesterday, Daniels wanted to use the power of state government to protect unsuspecting students from “wrong” ideas—defined as ideas with which he disagreed. There is no principle more basic to both the academy and the American constitutional system than the one that forbids him from doing so.

The Founders did not minimize the danger of bad ideas; they believed, however, that empowering government to suppress “dangerous” or “offensive” ideas would be far more dangerous than the free expression of those ideas—that once we hand over to the state the authority to decide which ideas have value, no ideas are safe.

In these United States, We the People get to decide for ourselves what books we read, what websites we visit, what videos we watch, what ideas we entertain, free of government interference. Your mother can censor you, and in certain situations your employer can censor you–but your Mayor or Governor or President cannot.

Furthermore, free intellectual inquiry is an absolutely essential ingredient of a genuine education. Education requires the freedom to examine any and all ideas, to determine which are good and which not so good. It also requires that we protect scholars who come to unpopular conclusions or hold unpopular views.

Some citizens will make poor choices of reading materials or ideologies. Some Professors will embrace perspectives that disturb or offend students and Governors. Just as putting up with Rush Limbaugh, Glenn Beck and their clones is the price liberals pay for free speech, putting up with Howard Zinn–or with Robert Reich, or with me—is the price conservatives pay for their own freedom.

The search for truth requires that we examine contending ideas. That is not the same thing as requiring some sort of artificial “balance” that ignores scholarly integrity in order to teach discredited positions like creationism rather than science, or holocaust denial rather than accurate history.  As a statement from the AAU put it some years back,

Self-appointed political critics of the academy have presented equal representation for conservative and progressive points of views as the key to quality. But the college classroom is not a talk show.  Rather, it is a dedicated context in which students and teachers seriously engage difficult and contested questions with the goal of reaching beyond differing viewpoints to a critical evaluation of the relative claims of different positions. Central to the educational aims and spirit of academic freedom, diversity of perspectives is a means to an end in higher education, not an end in itself.

Howard Zinn was a reputable, albeit controversial, historian. Much of what he wrote was a valuable corrective to the histories of his era; some was oversimplified or otherwise problematic. But opinions about the value of his–or any–books are beside the point.  The question is “who decides what books are used in the classroom,” and the answer is not ”the governor”.

The real irony of these sorts of efforts at censorship is that they almost always backfire by shining a brighter light on the object of the censorship. I wonder how many of the people attending the IUPUI read-in and the others around the state had ever heard of Howard Zinn prior to Daniels’ ill-advised effort to suppress his work.

Funny how often it works that way.

One of my sons was a student at the University of Cincinnati when the local prosecutor tried to close down an “obscene” exhibit of Robert Mapplethorpe’s photographs. Students and residents who ordinarily wouldn’t have gone across the street to attend an art exhibit couldn’t wait to see this one. The line stretched for blocks.

This happens so often, censorship has become a marketing tool. According to film histories I’ve read, at times when movie attendance has been dwindling, filmmakers have responded by producing more explicit films in hopes that the howls from the “usual sources” would increase attendance.

You’d think the busybodies would learn: If there’s material you don’t want people to see or hear or read, your best bet is just to ignore it. As Governor Daniels demonstrated, however, the moral scolds and PC enforcers have trouble learning that lesson.

Howard Zinn says “thanks, Mitch.”

 

 

 

Why Censorship Doesn’t Work

A former student sent me the following email

Plans are proceeding for the November 5 “Read-In” of writings by Howard Zinn at Purdue University, co-sponsored by the Indiana affiliate of the American Federation of Teachers among other groups.  Parallel events at several other Indiana schools are planned.  Information is available from Prof. Tithi Bhattacharya at tbhattac@gmail.com.
I can’t help wondering how many people who will attend this event had ever heard of Howard Zinn prior to Mitch Daniels’ ill-advised effort to suppress his work.
It so often works that way.
When my middle son was a student at the University of Cincinnati, the local prosecutor tried to close down an “obscene” exhibit of Robert Mapplethorpe’s photographs. Students and residents who ordinarily wouldn’t have gone across the street to attend an art exhibit lined up to see this one. My son told me the lines stretched for blocks.
The phenomenon isn’t limited to books and art–according to a couple of film histories I’ve read, at times when movie attendance was dwindling, filmmakers responded by producing more explicit films and hoping that the howls of prudery from the “usual sources” would increase attendance.
You’d think the busybodies would learn.
Censorship may or may not be unconstitutional (depending upon whether government is doing it), but it’s rarely effective. Quite the contrary. If there’s material you don’t want people to see or hear or read, your best bet is just to ignore it.
I wonder if Mitch has figured that out yet.